This is an employment race discrimination case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2. Defendant, Knoxville Community Development Corporation ("KCDC"), appeals the district court's judgment for plaintiff, Jerry L. Cantrell. The key issues raised include the sufficiency of the evidence for the plaintiff, the calculation of back wages as damages, and the tolling of the statute of limitations when Cantrell failed to file his Equal Employment Opportunity Commission ("EEOC") charge in a timely manner. We affirm in part and reverse in part. KCDC's challenge of the calculation of back wages at a rate higher than Cantrell was receiving prior to the layoff and the question of equitable tolling under the circumstances of this case have not yet been addressed in this circuit. We, therefore, discuss these issues below. All other issues raised by the appeal are addressed in an unpublished appendix to this opinion.

Cantrell filed this action on January 14, 1991, claiming that he was selected for a reduction in force because he was black. Because the complaint alleged discrimination on March 19, 1990, KCDC filed a motion to dismiss for failure to file the underlying EEOC claim within the 180-day filing period required by T.C.A. Sec. 4-21-302(c) and 42 U.S.C. Sec. 2000e-5(e). The district court denied the motion, holding that the filing requirement was equitably tolled due to Cantrell's attorney's mental instability. After a bench trial, the court found that Cantrell had been discharged from his job because he was black and awarded $61,863.32 in lost wages and back wages, plus attorney's fees and costs. In awarding back wages, the court calculated the amount of the award based on the wages it felt Cantrell should have been receiving in the absence of discriminatory practices, rather than the wages Cantrell had received prior to the layoff.

A remand is necessary to allow the district court to revisit the question of whether equitable tolling properly applies to allow Cantrell's claim to be filed with the EEOC after the 180-day filing deadline. There is no dispute that the administrative time limits for filing EEOC complaints are subject to equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982). Moreover, time limitations may be tolled on equitable grounds not inconsistent with the legislative purpose. Leake v. University of Cincinnati, 605 F.2d 255, 259 (6th Cir.1979).

KCDC's first objection to the district court's tolling of the time limitation applicable to Cantrell's claim is that, in the cases the court cites for support of its action, the basis for tolling the filing deadline "sprung from the administrative functioning of the statutory scheme itself, and not from alleged attorney error." KCDC argues that attorney negligence is never sufficient to warrant equitable tolling. That may be, but this is not a case of "garden variety" attorney negligence. If Cantrell pursued his claim diligently, yet was abandoned by his attorney due to his attorney's mental illness, equitable tolling may be appropriate. See Burton v. United States Postal Service, 612 F. Supp. 1057, 1059 (N.D.Ohio 1985) (equitable tolling based on attorney's abandonment of client who pursued his claim as diligently as possible); cf. Moody v. Bayliner Marine Corp., 664 F. Supp. 232, 236 (E.D.N.C.1987) (mental incapacity of plaintiff may warrant equitable tolling of statute of limitations requirements in Title VII action).

In this case, however, a factual determination was not properly made concerning the attorney's mental incapacity. The district court judicially noticed counsel's mental instability.1 Judicial notice, however, is limited to facts:

not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Fed.R.Evid. 201(b).

The mental instability of an individual is not capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, as reasonable professionals can disagree as to an individual's mental state. Moreover, even if counsel's mental instability at the time of decision was unquestioned and widely known within the district court's jurisdiction, the question remains whether counsel suffered from mental instability during the 180-day filing period. It was inappropriate, therefore, for the district court to take judicial notice of the attorney's mental incapacity during the relevant 180-day period.

This cause will be remanded to allow Cantrell an opportunity to present evidence of his attorney's mental state within the 180-day filing period. Also, as lack of diligence by a claimant acts to defeat his claim for equitable tolling, Cantrell should be required to present evidence of his diligence in pursuing the claim. See Morgan v. Washington Manufacturing Co., 660 F.2d 710, 712 (6th Cir.1981) (equitable considerations should toll the 180-day period, in the absence of prejudice to the defendant or a showing of bad faith or lack of diligence by a claimant).

We decline to disturb a lower court's award of damages on appeal as long as that award is "supported by some competent, credible evidence going to all the essential elements of [the] award." Adkins v. GAF Corp., 923 F.2d 1225, 1232 (6th Cir.1991). KCDC argues that, because of Cantrell's shoulder injury, he failed to show that he could have continued his employment had he not been discharged. The district court's finding that Cantrell, despite his shoulder injury, could have--and did--continue to perform some plastering work is supported by the record. Cantrell's decision not to pursue a plastering career after his layoff does not prove that he would have been unable to continue such work.

KCDC also argues that Cantrell failed to mitigate his damages, because he sought a different type of employment that consistently paid less than plastering work. This argument is without merit. KCDC cites Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1234 (7th Cir.1986), for the proposition that the duty to mitigate and to prove mitigation is on Cantrell. However, Wheeler makes clear that, once damages have been established, it is the employer's burden to show that the employee failed to mitigate. Id. KCDC did not show that Cantrell was not reasonably diligent in seeking other employment, or that he could have found comparable employment. See id. Moreover, although the district court did not explicitly hold that Cantrell had mitigated, it deducted from the lost wages amount the earnings Cantrell received from subsequent jobs.2

The only problem with the district court's calculation of the damage award is that the court did not award back pay at the rate Cantrell was receiving. Instead, it awarded back pay at the rate it felt Cantrell should have received had the employer not engaged in discrimination prior to the discharge. The approach taken by the district court effectively affords Cantrell relief for a disparate pay claim that he failed to pursue.

The cases cited by Cantrell in support of addressing unequal pay in a back-pay award for discriminatory discharge deal primarily with what constitutes a "continuing violation" under Title VII for statute of limitations purposes. Even the case Cantrell cites as an example of a district court awarding "back-pay for non-actionable prior discriminatory acts by paying her the difference in [plaintiff's] actual salary at the time of her constructive discharge and the ... salary she should have received if the defendant had not discriminated against her ... five years earlier," deals with the continuing violation question, not the question of whether non-actionable discriminatory acts can be addressed indirectly through calculation of damages. See Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1560 (5th Cir.1985).

Whether a back-pay award properly includes the value of enhanced income Cantrell should have received has been addressed only in the context of a continuing violation situation. See, e.g., Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 980 (5th Cir.1983); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 (D.C.Cir.1976). There is no authority in support of or in opposition to basing a damages award for a discrete act of discriminatory discharge on non-actionable prior acts of discrimination. The district court should not have provided indirect relief for the disparate pay claim. We remand, therefore, to allow the district court to recalculate the damages award based on Cantrell's actual wages at the time of discharge.

The judgment of the district court is AFFIRMED in part and REVERSED in part. This cause is REMANDED for recalculation of damages consistent with this opinion and for factual findings regarding Cantrell's counsel's mental state, as well as Cantrell's own diligence in pursuing his EEOC claim, during the 180-day period commencing March 19, 1990. Of course, if the court finds the filing period was not tolled, it need not recalculate the damages, as they would not be recoverable.

Jerry L. Cantrell, Plaintiff, Appellee,

v.

Knoxville Community Development Corporation, Defendant, Appellant.

On Appeal from the United States District Court for the Eastern District of Tennessee

Before: JONES and SILER, Circuit Judges; WISEMAN, District Judge.

SILER, Circuit Judge.

This appendix to the published opinion in this case contains our discussion of the facts and the issues of sufficiency of the evidence for the plaintiff and award of attorney's fees.

KCDC, a public housing agency, hired Cantrell, a plasterer, to work on a modernization project of one of its public housing structures. Cantrell, who is black, was hired in May 1988, as a temporary full-time employee, which meant that, after completion of the project for which he was hired, he would either be laid off or moved to another project. Because Cantrell's brother was a permanent employee of KCDC, the defendant's nepotism policy prevented Cantrell from being hired as a permanent employee. There is no dispute, however, that he could have continued for a long or even indefinite period of time as a temporary full-time employee. Cantrell was the only plasterer on the project. When additional plasterers were hired--all of whom were white--they insisted on, and received, union scale pay, which was $4.37 higher than the hourly rate Cantrell was paid. These additional plasterers were hired between March and September, 1989. Cantrell learned of the disparity in pay, and complained to his supervisor on April 3, 1989. That same day, Cantrell turned in his tools and quit, only to return to work the next day to resume his employment. Less than two weeks later, he filed an EEOC claim for disparate treatment based on the pay difference. The EEOC dismissed the claim and issued a right to sue letter in February 1990. Cantrell, however, never filed suit on the claim.

In June 1989, Cantrell injured his shoulder on the job. He missed several weeks of work and was late on a number of occasions thereafter, allegedly because of his on-the-job injury. KCDC claims that, after Cantrell was informed in April 1989 that his pay would not be increased, both his work performance and attendance were substandard. He was laid off by KCDC on March 19, 1990. On January 11, 1991, he filed a joint complaint with the Tennessee Human Rights Commission ("THRC") and the EEOC. On September 23, 1991, the EEOC issued a determination letter dismissing the charge and informing Cantrell that he had 90 days to file suit in federal district court should he wish to pursue the matter further.

Cantrell then filed this action, claiming that he was selected for a reduction in force because he was the only black plasterer. After a bench trial, the court found for Cantrell, and granted him damages plus $40,219.75 in attorneys' fees and $2,532.55 in costs. KCDC appeals the judgment, the calculation of damages, and the award of attorneys' fees.

The district court's finding of intentional discrimination is a finding of fact, and should not be disturbed on appeal unless clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985). If the district court's finding is plausible in light of the evidence taken as a whole, then we will not reverse it even if we would have reached a different conclusion. Id; see also Bruhwiler v. University of Tennessee, 859 F.2d 419, 421 (6th Cir.1988).

KCDC, citing Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir.1975), argues that Cantrell failed to establish a prima facie case of discrimination because, although he arguably could show that he was a member of a protected class and was discharged without valid cause, he failed to show that KCDC continued to seek applications for plasterers after he was laid off. In reduction in force cases, however, this third prong--usually established by showing that the employer continued to solicit applications for the vacant position--can be established by showing that similarly situated non-minority employees were not discharged or laid off. See Shah v. General Electric Co., 816 F.2d 264 (6th Cir.1987).

The district court, relying on Williams v. Williams Electronics, Inc., 856 F.2d 920 (7th Cir.1988), held that Cantrell could establish a prima facia case by showing that he was a member of the protected class, was performing according to the employer's legitimate expectations, was terminated, and that other employees not in the protected class were treated more favorably. See id. at 923. The district court, however, relied on evidence of disparate treatment prior to the termination to establish that others were treated more favorably. This reading of Williams would comport with Shah's implication that the evidence of favorable treatment of non-minorities must be sufficient to raise an inference of disparate treatment regarding the discharge itself.

Whether Cantrell established a prima facie case, however, is relevant only to determine who bears the burden of production; the ultimate burden of proving intentional discrimination remains on the employee. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093-94, 67 L. Ed. 2d 207 (1981). We need not review the sufficiency of Cantrell's prima facie case; we instead address the ultimate issue of whether he has proved discrimination. See Phelps v. Yale Sec. Inc., 986 F.2d 1020, 1023-24 (6th Cir.), cert. denied, --- U.S. ----, 114 S. Ct. 175, 126 L. Ed. 2d 135 (1993). We focus, therefore, on whether the evidence as a whole supports the district court's ultimate finding of intentional discrimination.

A review of the record supports the finding of intentional discrimination. KCDC attempted to articulate legitimate reasons for Cantrell's discharge, and even provided a supervisor's documentation of seemingly every problem--large or small--with Cantrell's job performance. The district court, however, found that, in light of evidence of continuing disparate treatment on the job, the reason for discharging Cantrell was his race. The documentation of problems with Cantrell's work only served to support a finding of pretext, as he was written up more often than all of the non-minority employees combined, and was written up for very minor infractions. Moreover, the act of documentation was begun only after the dispute concerning his pay arose. Cantrell had performed his work, without complaint from the employer, for four and one-half months before that time. Viewing the record as a whole, we cannot say that the district court's finding of intentional discrimination was clearly erroneous.1

The district court, in determining whether Cantrell was discharged for discriminatory reasons, took into consideration evidence of prior acts of discrimination by KCDC, such as Cantrell's allegations of disparate treatment regarding pay. KCDC points out that the only claim of discrimination set out in the underlying EEOC charge is that Cantrell was laid off because of his race. KCDC contends, therefore, that this action should be limited to that charge only.

The district court relied on Roberts v. North American Rockwell Corp., 650 F.2d 823, 826-27 (6th Cir.1981), in allowing evidence of prior discriminatory acts to establish discriminatory motive for the discharge. Roberts, however, dealt with the question of whether the continuing violation doctrine applied for purposes of the filing deadlines, not whether prior acts are relevant to show discriminatory intent at the time of discharge. Despite the district court's misplaced reliance on Roberts, however, the court was correct in admitting the evidence.

We agree with those circuits following United Air Lines v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889, 52 L. Ed. 2d 571 (1977), that have held that even time-barred acts are admissible as relevant background evidence in a proceeding in which the status of a current practice is at issue. See, e.g., Downey v. Southern Natural Gas Co., 649 F.2d 302, 305 (5th Cir.1981) (time-barred acts of discrimination admissible to "illuminate current practices with, viewed in isolation, may not indicate discriminatory motives"); Allen v. County of Montgomery, 788 F.2d 1485 (11th Cir.1986) (exclusion of evidence occurring prior to demotion at issue substantially affected plaintiff's ability to demonstrate discriminatory intent).

KCDC disregards these cases and asserts that the evidence of prior discriminatory acts "was irrelevant and nonprobative on the facts and circumstances surrounding the layoff." Citing Wingfield v. United Technologies Corp., 678 F. Supp. 973 (D.Conn.1988), it argues that, because they lack relevance, allegations no longer actionable are inadmissible at trial. However, it misstates the holding of Wingfield. The court in Wingfield held that evidence of acts of discrimination which are no longer actionable are inadmissible "unless it [that evidence] makes the existence of discrimination [in the current action] more probable ". Id. at 983, citing Fed.R.Evid. 401, 402. The prior discriminatory acts were relevant to establish KCDC's discriminatory motive in laying off Cantrell. The district court, therefore, did not abuse its discretion in considering the evidence.2

We review the award of attorneys' fees for abuse of discretion. Scales v. J.C. Bradford and Co., 925 F.2d 901, 909 (6th Cir.1991). The district court's award of attorneys' fees should not be reversed unless so low or "so high as to constitute an unmistakable windfall." Hensley v. Eckerhart, 461 U.S. 424, 455, 103 S. Ct. 1933, 1950, 76 L. Ed. 2d 40 (1983). The fee award is not subject to reversal simply because it is not proportional to the damage award, because "a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms." See Riverside v. Rivera, 477 U.S. 561, 562, 106 S. Ct. 2686, 2688, 91 L. Ed. 2d 466 (1986) (affirming fee award some seven times compensatory and punitive damages).

KCDC argues that the district court should have discounted the fee award to eliminate compensation for unnecessary duplication of effort and questions the wisdom of two attorneys attending the trial, when a legal assistant could have sufficed. It also questions counsel's use of quarter-hour billing. We will not engage in second-guessing the district court's determination of which expenditures or hourly charges were reasonable, so long as the court, as it did here, articulates a fair explanation for the fee award and the fees are not so high as to constitute an unmistakable windfall.

The judgment of the district court is AFFIRMED in part and REVERSED in part. This cause is REMANDED for recalculation of damages and factual determinations consistent with the published opinion.

NATHANIEL R. JONES, Circuit Judge, dissenting in part.

I disagree with the majority on the equitable tolling issue. The district court did not err in finding that equitable tolling was appropriate in this case, and thus, I do not find it necessary to remand this issue to the district court.

This court reviews a district court's application of the doctrine of equitable tolling de novo. Rose v. Dole, 945 F.2d 1331, 1334 (6th Cir.1991). The majority has decided to remand the issue of equitable tolling to the district court so that it may make a factual finding with respect to the mental state of Cantrell's attorney. Maj. Op. at 1180. The majority finds that this is necessary because the district court inappropriately took judicial notice of the mental state of Cantrell's attorney. Id. I respectfully disagree.

KCDC argued in its motion to dismiss that Cantrell's failure to file his EEOC claim within 180 days of his discharge barred his claim. In denying this motion the district court stated the following:

In the instant case, Mr. Cantrell sought advice of counsel in the month of his discharge. He claims his attorney, W.P. Boone Dougherty, completed a claim on his behalf and led him to believe it had been filed. He claims he repeatedly called Mr. Dougherty's office and was told that he had not yet heard from the EEOC. In fact, Mr. Dougherty had neglected to file the claim.

The Court is well aware of Mr. Dougherty's psychiatric problems and his inability to file documents in a timely fashion. It FINDS, under these unusual circumstances, that Mr. Cantrell acted diligently to protect his rights and that he had no reason to know that his administrative action had not been timely filed. The Court suspects the EEOC made a similar finding, although there is no record of this, when it processed Mr. Cantrell's claim as if it had been filed within the time limits.

J.A. at 275-76.

Without even determining whether or not it was appropriate for the court to take "judicial notice" of the psychiatric problems of Cantrell's attorney, it is my view that, if the statement, "The Court is well aware of Mr. Dougherty's psychiatric problems and his inability to file documents in a timely fashion," were excised, the record would still reflect an appropriate basis for applying equitable tolling. The record does not reveal that Cantrell's late filing prejudiced KCDC or that Cantrell exercised bad faith or lacked diligence. See Morgan v. Washington Mfg. Co., 660 F.2d 710, 712 (6th Cir.1981) (holding that equitable tolling is appropriate "in the absence of prejudice to the defendant or a showing of bad faith or lack of diligence by a claimant")1 ; see also Andrews v. Orr, 851 F.2d 146, 152 (6th Cir.1988) (holding that where defendant was not prejudiced due to late filing and plaintiffs "acted promptly after becoming aware of the true state of affairs" equitable tolling of filing requirement was appropriate). Instead, the record supports the district court's conclusion that Cantrell acted diligently to protect his rights.

Furthermore, the district court appropriately took "judicial notice" of Dougherty's psychiatric problems. In his response to KCDC's motion to dismiss, Cantrell presented evidence of Dougherty's letter of July 10, 1991, to Cantrell stating his intention to retire from law practice, and stating that "[a]s you may know, I have been hospitalized recently for treatment for major depression." J.A. at 250. Additionally, Cantrell also presented two news articles that discussed Dougherty's battles with mental depression and stress throughout his legal career. J.A. at 245, 246. Clearly, the district court appropriately took judicial notice of a fact "generally known within the territorial jurisdiction of the trial court." Fed.R.Evid. 201(b).

Finally, in taking judicial notice of Dougherty's mental difficulties, the court simply recognized that this was another factor bearing on its determination that equitable tolling was appropriate in this case. The district court neither stated that this mental incapacity actually caused Dougherty's failure to file Cantrell's EEOC complaint, nor was it required to make such a finding before it was allowed to either take judicial notice of Dougherty's general psychiatric problems or apply the doctrine of equitable tolling. The district court appropriately applied equitable tolling in this case.

For the reasons stated, I dissent from the portion of the majority opinion remanding this case to the district court for further consideration of the equitable tolling issue. I concur in the remainder of the opinion.